Georgia Bates

ARTICLE by Georgia Bates, Solicitor
June 2010

An employment law update on the proposed changes to employees’ break entitlements

The current position

In April last year changes to the Employment Relations Act 2000 took effect, creating a statutory entitlement for employees to rest and meal breaks during their shift or work period. The changes were designed to reflect and codify what was seen as standard practice in New Zealand. 

Following this amendment, employees have been entitled to take paid rest and unpaid meal breaks in the middle of the work period (where reasonable and practical) within the following schema:

1. Where the employee worked more that two hours but not more than four hours, they were to be given a paid 10 minute rest break.
2.  If an employee worked more than four hours but less than six hours, they were permitted to have a paid 10 minute rest break and an unpaid 30 minute meal break.
3. Where an employee worked more than six hours but less than eight hours, they were to be given two paid 10 minute rest breaks and one unpaid 30 minute meal break.

Proposed changes

On 27 April 2010, the Minister of Labour, the Honourary Kate Wilkinson, moved that the Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill be enacted to amend this recent law change. In her opening address she explained the primary intentions of the Bill to be:

1. To introduce greater flexibility for employers as to when/ if they must provide the employee with such breaks.
2. To allow employers, when assessing whether the requisite breaks are ‘reasonable’, to have regard to:
   1.  the employer's operational environment, resources and the employee's interests;
   2. whether a break enables the employer to maintain continuity of service or production; and
   3. the nature of the work performed by the employee.

In a more radical departure from the original legislation, the Bill also provides that to the extent that there is an agreement between the employee and employer – the employer does not have to provide rest and meal breaks where the employee is compensated in another manner (i.e. an earlier finish time).

Issues arising

The proposed amendments will alter the current power balance and give employers a much greater discretion; consequently such changes should be made carefully.

The Bill was hastily drafted and there are notable concerns arising from:

1. the level of discretion given to the employer regarding consideration of whether they are capable of ‘reasonably providing’ the said breaks;
2. the definition of ‘compensatory measures’ in the Bill, which gives examples of such measures but provides no objective mechanism by which the parties can assess the adequacy in particular cases; and
3. the lack of certainty in the drafting, which is likely to lead to disagreement between employees and employers and thus increase opportunities for employees to initiate a personal grievance.

Have your say

The chairperson of the Transport and Industrial Relations Select Committee has made a call for public submissions from both employers and employees on this matter, the closing date for which is Friday, 11 June 2010.

Corban Revell Lawyers, are happy to provide assistance if you wish to make a submission or have any queries about the way your workplace manages employment issues. 

 Please contact Georgia Bates if you wish to discuss this further:

 gbates@corbanrevell.co.nz

Solicitor

Tel: (09) 837-0550

Fax: (09) 838 7187